UNCRC (Incorporation) (Scotland) Act 2024 - part 2: statutory guidance

Annex B. Sources to guide interpretation

There are many sources of interpretation for the international Convention that may provide guidance for public authorities when considering their duty not to act incompatibly with the UNCRC requirements under the Act. As above, it is important to keep in mind that these sources apply at the international level, to States which are party to the Convention, and are not definitive or authoritative as to how the UNCRC requirements in the Act will be interpreted in Scots law as applying to public authorities. The following sources may assist public authorities when considering their duties under the Act:

• General Comments which aim to provide guidance and additional clarity on the interpretation of the Convention
• Concluding observations on the UK, where the Committee comments as part of their reporting cycle on any progress achieved, any areas of concern and provides recommendations on what needs to change for the UK Government and devolved governments to improve implementation of the Convention
• Reports from Days of General Discussion, where the Committee invites experts to discuss a significant issue impacting human rights^[39].

B.1 Committee on the Rights of the Child

The Committee on the Rights of the Child is the body of 18 independent experts set up by the UN to monitor the progress that State Parties to the Convention have made in relation to implementation of the Convention.

State Parties which have adopted the Convention are obliged to submit regular reports to the Committee on implementation of the Convention. States must submit an initial report two years after acceding to the Convention and then periodic reports every five years. The Committee examines each report and addresses its concerns and recommendations to the State Party in the form of “concluding observations” (see section B.4 on concluding observations in response to periodic state reports).

The Committee has a range of responsibilities, it provides and issues General Comments, Concluding Observations, views and findings under the third Optional Protocol (not yet ratified by the UK) and recommendations following days of general discussion.

These responsibilities all form part of sources which can assist in interpreting the international Convention, and are available on the United Nations High Commissioner for Human Rights (OHCHR) website.

B.2 General Comments

The Committee makes recommendations on issues relating to children to which it believes the State Parties should devote more attention. General Comments provide interpretation and analysis of the international Convention articles to help State Parties understand how the Convention can be put into practice. For example:

• General Comment 5 outlines States parties’ obligations to develop what it has termed “general measures of implementation”
• General Comment 12 specifically focuses on a child’s right to be heard
• General Comment 10 looks at children’s rights in juvenile justice, and highlights important core elements needed for a comprehensive policy focussing on prevention of juvenile delinquency, intervention without resorting to judicial proceedings and diversion (e.g. referral to alternative (social) services)
• General Comment 14 highlights the right of the child to have their best interests taken as a primary consideration

The full list of final General Comments are available on the UN online database, including supporting documents which aim to assist with interpretation. When considering how to implement children’s rights across their services, public authorities may find consideration of relevant General Comments useful in supporting their understanding of how the Convention is analysed and interpreted at an International level. General Comments and Concluding

Observations provide a source of international expert opinion which experts and children’s rights observers, as well as rights holders, will be keen to see public authorities considering during implementation. It has been suggested that drawing on the learning and expertise included in the General Comments may enable Scotland to keep pace with developments in international law and practice.^[40]

B.3 Days of General Discussion

The Days of General Discussion are convened by the Committee every two years. They provide an opportunity to develop a deeper understanding of the contents and implications of the Convention under international law as these relate to specific articles or topics.

In particular, the Days of General Discussion offer an opportunity to engage directly in a dialogue with members of the Committee and other relevant stakeholders, and more importantly, to hear from children and young people with lived experience.

Representatives of Governments, non-governmental organisations, United Nations human rights mechanisms, United Nations bodies and specialised agencies, national human rights institutions, the business sector, as well as individual experts and children are invited to take part.^[41]

As a recent example, during its 81st session, the Committee decided to devote its 2020 Day of General Discussion to the issue of children in alternative care. Other recent topics have included children’s rights and the environment, digital media and children’s rights, and children of incarcerated parents. A full list of topics and reports can be accessed through the United Nations website.

B.4 Concluding observations in response to periodic state reports

The international Convention requires State Parties to the Convention to report on the steps they have taken to give effect to the Convention. The Committee reviews these reports and may, usually after a period of engagement and clarification with the State Party, produce a set of country-specific suggestions and recommendations known as ‘Concluding Observations’, highlighting positive practice and recommending areas for improvement. The Scottish Government was last examined by the Committee in May 2023 as part of UK State Reporting.